Commonwealth v. Lynes, 142 Mass., 577. their education has been so utterly neglected that they are wholly ignorant on religious subjects. In those cases a postponement of the trial may be very proper; but where the infirmity arises from no neglect, but from the child being too young to be taught, I doubt whether the loss in point of memory would not more than countervail the gain in point of religious education. I lay down no general rule, as there may be cases where a postponement would be proper. In the English practice, it is usual for the judge to examine an infant as to his competency before going before the grand jury, or before proceeding to trial, and, if found incompetent for want of proper instruction, in his discretion, to put off the trial in order that the infant may, in the meantime, receive such instruction as may qualify him to take an oath. Roscoe Crim. Ev (7th Am. ed.) 114. 3 Russ. on Crimes (9th Am. ed.) 612. 1 Stark Ev. (4th. ed.) 117. Rex. v. White, 1 Leach, 430. Regina v. Milton, Ir. Cir. Rep. 16. Regina . Baylis, 4 Cox C. C. 23. The same practice is laid down in 1 Greenl. Ev. (14th ed.) § 367. It is left discretionary with the court, when a principal witness offered is not yet sufficiently instructed in the nature of an oath, to put off the trial that this may be done. The defendant in his bill of exceptions has given us no information as to the moral condition of the witness, before she was called to testify; nor whether she had been instructed in religious knowledge to any extent. We are not informed what her intellect was, nor how far it was ripened. All these considerations were before the judge who examined the witness before and after her instruction. If it had appeared to the presiding judge that the witness did not sufficiently understand the nature and obligation of an oath, we think that it was within his discretion to permit the child to be properly instructed, provided she was of sufficient age and intellect to receive instruction. But the real question arose at the time when she was called upon to take the oath. The judge must then have been satisfied that the witness at that time understood the nature of an oath, and the solemn responsibility which then rested upon Commonwealth v. Lynes, 142 Mass., 577. her to speak the truth.* He was to say whether she understood the sanctity of an oath, so that she could be a witness, and the jury were to determine whether they believed her evidence. Regina v. Hill, 5 Cox C. C., 259. Kendall v. May, 10 Allen, 59, 64. The question of competency, depending upon the fact in evidence, was to be decided by the court. When, therefore, the judge had examined the witness and found her competent to be sworn, and she was permitted to testify, we think that the defendant could not object upon the ground that she had been instructed by a Christian minister since the last adjournment of the court. [Here followed a consideration of other exceptions.] Exceptions overruled. * The result of the cases is that the competency of children as witnesses is to be determined, not by their age, but by the degree of their understanding and knowledge. It is essential that they should possess sufficient intelligence to receive just impressions of the facts respecting which they are examined, sufficient capacity to relate them correctly and sufficient instruction to appreciate the na ure and obligation of an oath. People v. Bernal, 10 Cal. 66. Notes of Cases on Competency of Infants. NEW YORK STATUTE. Whenever in any criminal proceeding a child actually or apparently under the age of twelve years, offered as a witness, does not, in the opinions of the court or magistrate, understand the nature of an oath, the evidence of such a child may be received, although it is not given under oath, if, in the opinion of the court or magistrate, such child is possessed of sufficient intelligence to justify the reception of the evidence; but no person shall be held or convicted of an offense upon such testimony unsupported by other evidence. [Added by Chap. 279 of the Laws of 1892 to section 392 of the Code Crim. Pro., which formerly read "The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code."] NOTES OF CASES ON COMPETENCY OF INFANTS. The objector is entitled to have the examination made in his presence on the trial before the court. It is error to accept the witness merely on the statement of one of the justices holding the court, that he, the justice, had previously examined the child offered as a witness, and was satisfied of his competency. People v. McNair, 21 Wend., 608. NELSON, Ch. J. In People v. Findal, 58 Hun, 482; 35 State Rep., 805; 12 N. Y. Supp., 498, it was held not to be the practice in criminal trials, when a witness incapable of understanding an oath by reason of youth is called by either party to take the unsworn statement of such witness. In Taylor v. State (22 Tex. App., 529, s. c. 3 Southwest. Rep., 753); it was held error in a criminal case where it appeared on voir dire that witness did not understand the nature of an oath, for the judge to take the witness into a private room and instruct him. At what age an examination as to a child's understanding is required before he may be allowed to testify. Michigan: Hughes v. Detroit, etc., Ry. Co., 1887, 31 Northwest. Rep., 603 (error not to examine as to the competency of a child of seven). Missouri: Brashears v. Western Union Tel. Co., 45 Mo. App. 433 (Mo., R. S., 1889, § 8925, changes the common law as to presumed incapacity under the age of fourteen to under ten); s. p. Ridenhour v. Kansas City Cable Ry. Co., 102 Mo., 270; s. c. 14 Southwest. Rep., 760. Notes of Cases on Competency of Infants. At what age a child's testimony has been received where capacity was shown. Alabama: McGuff v. State, 88 Ala., 147; s. c. 7 Southern Rep., 35 (a child of seven and a half). Georgia: Moore v. State, 1888, 5 Southeast. Rep., 51 (a boy of ten). Iowa: State v. Severson, 1889, 43 Southwest. Rep., 533 (boy of twelve). Missouri: State v. Doyle, 1892, 17 Southwest. Rep., 751 (child of nine). Nebraska: Davis v. State, 1891, 47 Northwest. Rep., 854 (a nine year old child). New York: Agnew v. Brooklyn City R. Co., 5 N. Y. Supp., 756 (child under eight); Jones v. Brooklyn, etc., R. Co., 3 id., 253 (boy of eleven). Texas: Parker v. State, Tex. App., 1893, 21 Southwest. Rep., 604 (a boy of twelve); Comer v. State, Tex. App., 1893, 20 id., 547 (a child of ten); Hawkins v. State, 27 Tex. App., 273 (boy of eleven). At what age a child's testimony has not been received where incapacity was shown. Alabama: Kelton v. State, 88 Ala., 189; s c. 7 Southern Rep., 38 (a boy of fourteen). Georgia: Johnson v. State, 76 Ga., 76 (a six year old girl, though she was called to show a rape upon herself). West Virginia: 37 W. Va., 565; s. c. 16 Southwest. Rep., 565 (an infant of such tender years and mind as to be legally irresponsible for her conduct). Texas: Halst v. State, 1887, 3 Southwest. Rep., 757 (a child of seven). In Tobey v. Leonards, 2 Wallace, 423, a bill in equity for reconveyance and compensation for waste. Mr. Justice Wayne said as to the introduction of children as witnesses: "Where the father of a family introduces the juvenile members of it, as witnesses in such a litigation as this has been, it cannot be done without its being considered as a forlorn effort of parental obliquity." District of Columbia v. Armes, 107 U. S., 519. DISTRICT OF COLUMBIA v. ARMES. Supreme Court of the United States, 1882. [Reported in 107 U. S., 519.] An insane person is a competent witness, if it appears to the court, upon examination of him and competent witnesses, that he understands the obligation of an oath, and is capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue. Action against a municipal corporation, for damages for injuries received from a fall caused by a defective sidewalk. The plaintiff's spine was injured, producing partial paralysis which resulted in the impairment of his mind. On the trial in the Supreme Court of the District of Columbia, the plaintiff was offered and received as a witness, against defendant's exception to him as incompetent on account of deranged mind. The Supreme Court of the United States affirmed the judg ment. FIELD, J. [After stating the facts]: The present action was for the injury thus sustained. He was himself a witness, and it appeared from his testimony that his mind was feeble. His statement was not always as direct and clear as would be expected from a man in the full vigor of his mind. Still it was not incoherent, nor unintelligible, but evinced a full knowledge of the matters in relation to which he was testifying. A physician of the Government Hospital for the Insane, to which the deceased was taken two years afterwards, testified that he was affected with acute melancholy; that sometimes it was impossible to get a word from him; that his memory was impaired, but that he was able to make a substantially correct statement of facts which transpired before the injury took place, though, from the impairment of his memory, he might leave out some important part, that there would be some confusion of ideas in his mind, and that he should not be held responsible for any criminal act. A physician of the Freedmen's Hospital, in |